Benton v. Kansas City

• Decision Date: 11 January 1943
• Docket Number: No. 20083.,20083.
• Citation: 168 S.W.2d 476
• Parties: CARLTON R. BENTON, ADMINISTRATOR OF THE ESTATE OF VIOLA ATCHLEY, DECEASED, RESPONDENT, v. KANSAS CITY, MISSOURI, A MUNICIPAL CORPORATION, APPELLANT.
• Court: Missouri Court of Appeals

168 S.W.2d 476

CARLTON R. BENTON, ADMINISTRATOR OF THE ESTATE OF VIOLA ATCHLEY, DECEASED, RESPONDENT, v. KANSAS CITY, MISSOURI, A MUNICIPAL CORPORATION, APPELLANT.

No. 20083.

Kansas City Court of Appeals, Missouri.

January 11, 1943.

Appeal from Jackson Circuit Court. — Hon. Marion D. Waltner, Judge.

REVERSED.

Clarence C. Chilcott and Preston Forsee for respondent.

(1) There was no fatal variance between the evidence and the allegations of plaintiff's petition as to the date upon which decedent was injured when Sec. 7636, R.S. 1939, is properly and reasonably construed. Sec. 7636, R.S. 1939, never did, and does not now, impose upon the citizens of this State any more than a reasonable compliance therewith. State ex rel. Columbia National Bank of Kansas City v. Davis, 314 Mo. 373, 284 S.W. 464, 467; State ex rel. Hopkins v. Daues, 319 Mo. 733, 6 S.W. (2d) 893; Kramer v. K.C.P.L. Co., 311 Mo. 369, 279 S.W. 43, 896; Baltimore & Ohio R. Co. v. Kepner, 313 U.S. 542, 61 S. Ct. 841, 62 S. Ct. 6, 7; Reese v. St. Louis, 280 Mo. 123, 216 S.W. 315; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Costello v. Kansas City, 280 Mo. 573, 219 S.W. 386, 389; Wolf v. Kansas City, 296 Mo. 95, 246 S.W. 236, 239, 240; Meiyer v. K.C., 237 S.W. 1010; Knott v. K.C., 237 S.W. 1010; Kendrick v. K.C., 237 S.W. 1011; Bersch v. Dittrick et al., 19 Mo. 129, 131; Wynn v. Coy, 43 Mo. 301, 305; Anthony v. St. Joseph, 152 Mo. App. 180, 133 S.W. 371; Koontz v. City of St. Louis, 230 Mo. App. 128, 89 S.W. (2d) 586, 588; Randolph v. City of Springfield, 302 Mo. 33, 257 S.W. 449; Cole v. City of St. Joseph, 50 S.W. (2d) 623; Kling v. K.C., 277 Mo. App. 1248, 61 S.W. (2d) 411, 415; Sanders v. K.C., 107 S.W. (2d) 795; State ex rel. Thomas v. Daues et al., 314 Mo. 13, 283 S.W. 51; State ex rel. Woodson v. Trimble et al., 287 S.W. 626. (2) The evidence is undisputed that appellant had opened the street to the public and had constructed the walk upon which decedent fell and was, therefore, liable for a failure to keep it in a reasonably safe condition. The evidence further showed that said walk was not maintained or kept in a reasonably safe condition for public use and that the appellant was liable therefor. Snickles v. City of St. Joseph, 155 Mo. App. 308, 136 S.W. 752; Browning v. City of Aurora, 190 Mo. App. 477, 177 S.W. 685; Abey v. Mo. Pac. R. Co., 313 Mo. 492, 285 S.W. 965, 6 S.W. (2d) 1115; O'Gorman v. K.C., 233 Mo. App. 124, 93 S.W. (2d) 1132; Jackson v. City of Sedalia, 193 Mo. App. 597, 187 S.W. 127, 129; Henson v. K.C., 227 Mo. 443, 210 S.W. 13; Proctor v. City of Poplar Bluff, 184 S.W. 123, 126; Williams v. City of Hannibal, 94 Mo. App. 549, 68 S.W. 381, 382; Edmonston v. K.C., 227 Mo. App. 817, 57 S.W. (2d) 690; Brolin v. The City of Independence, 232 Mo. App. 1056, 1114 S.W. (2d) 199; Norton v. Kramer, 180 Mo. 536, 79 S.W. 699; Sutter v. K.C., 138 Mo. App. 105, 119 S.W. 1084; Drake v. K.C., 190 Mo. 370, 389, 88 S.W. 689, 695; Ross v. City of St. Joseph, 250 S.W. 625; Cooper v. City of Caruthersville, 264 S.W. 46; Horan v. City of Independence, 176 S.W. 1061. (3) The court did not err in giving respondent's Instruction No. 1. The first paragraph thereof was coupled to the succeeding paragraph, which directed a verdict, by the conjunction "and" requiring a proper finding of fact. If such instruction was erroneous it was cured by appellant's Instruction "G." Munden v. K.C., 225 Mo. App. 791, 38 S.W. (2d) 540, 543, 544; Reed v. City of St. Joseph, 218 Mo. App. 651, 266 S.W. 330, 331; Drake v. K.C.P.S. Co., 63 S.W. (2d) 75, 83; Dohring v. K.C., 81 S.W. (2d) 943, 946; Lueking v. City of Sedalia, 180 Mo. App. 203, 167 S.W. 1152, 1153; State ex rel. Col. National Bank of K.C. v. Davis, 314 Mo. 373, 284 S.W. 464, 467; State ex rel. Hopkins v. Daues, 319 Mo. 373, 6 S.W. (2d) 893; Davis v. City of Independence, 330 Mo. 201, 49 S.W. (2d) 95; Jordan v. St. Joseph R.R.L.H. & P. Co., 335 Mo. 319, 73 S.W. (2d) 205; Hein v. Peabody Coal Co., 337 Mo. 626, 85 S.W. (2d) 604; Schell v. Ransom Coal & Grain Co., 79 S.W. (2d) 543; Martin v. Continental Ins. Co., 256 S.W. 120; Kiger v. Sanco, 1 S.W. (2d) 218; Murphy v. Fid. Nat. Bank & Trust Co., 226 Mo. App. 1181, 49 S.W. (2d) 668; O'Howell v. Miller, 11 S.W. (2d) 1068; Shouse v. Dubinsky, 38 S.W. (2d) 531.

William E. Kemp and John J. Cosgrove for appellant.

(1) The court erred in refusing to give instruction lettered "A" in the nature of a demurrer to the evidence offered by the defendant at the close of plaintiff's evidence and defendant's instruction lettered "B" in the nature of a demurrer to the evidence offered at the close of all the evidence for the following reasons: (a) There was a fatal variance in the evidence from the allegations in the petition as to the time of the injury. The petition alleges that the accident occurred on or about the 23rd day of September, 1933, the evidence shows that the accident occurred September 22, 1933. Treating the petition as written notice as required Sec. 7636, R.S. 1939, the notice is not sufficient to comply with the terms of said section. It does not give the time when the injuries were received and plaintiff is not entitled to maintain her action. Hackenyos v. St. Louis, 203 S.W. 986; Boyd v. Kansas City, 291 Mo. 622, 237 S.W. 1001; Kling v. Kansas City, 61 S.W. (2d) 414; Cole v. St. Joseph, 50 S.W. (2d) 623. (b) Plaintiff's evidence wholly fails to prove actionable negligence against the defendant in the maintenance of the pathway in question: (1) if the stone upon which plaintiff stepped was not reasonably safe there was no evidence as to how long its alleged unsafe condition had existed and no evidence that defendant knew, or in the exercise of ordinary care, could have known of such unsafe condition in time thereafter in the exercise of ordinary care to have remedied or repaired the same; (2) there was nothing deceptive about the pathway but on the contrary its nature and character were obvious to pedestrians using the same and the surface thereof was such that one using it knew that he would likely step upon loose stones; (3) defendant was not negligent in maintaining a path of rock at the place and under the circumstances mentioned in the evidence. Starkey v. City, 189 Mo. App. 352, 175 S.W. 314; Tavano v. City, 192 N.E. 23; Cole v. City, 50 S.W. (2d) 623; Cannon v. Town, 152 N.E. 752; Maxwell v. Kansas City, 52 S.W. (2d) 487; McQuaid v. City, 201 Ill. App. 136; Stanka v. Shamokin, 66 Pa. Sup. Rep. 553; McKone v. Village of Warsaw, 187 N.Y. 336, 80 N.E. 212; Emery v. Pittsburg, 119 Atl. 603; Quinn v. New York, 129 N.Y. Supp. 1028; Fritsche v. City, 116 Pac. (2d) 562; City of Huntington v. Bartrom, 95 N.E. 544. (c) If the stone upon which plaintiff stepped was unsafe or insecure for walking thereon such defect was a latent defect, could not have been known by the exercise of ordinary care, and defendant is not liable therefor. Carvin v. St. Louis, 151 Mo. 334, 52 S.W. 210; Baustian v. Young, 152 Mo. 317, 326; Buckley v. Kansas City, 156 Mo. 16, 25. (2) The court erred in giving, over objection of defendant, plaintiff's Instruction No. 1 for the reasons: (a) The first paragraph of said instruction contains an erroneous abstract statement of the law in that it broadens the duty of the city by omitting the element that one using a sidewalk must himself exercise ordinary care for his own safety. Ryan v. Kansas City, 232 Mo. 471, 483; Reiling v. Russell, 153 S.W. (2d) 6; O'Neill v. City, 292 Mo. 656, 239 S.W. 94. (b) The instruction submits a general condition of loose rock while the evidence shows that plaintiff stepped upon a single stone embedded in the earth that looked solid to her. There is no evidence upon which to submit actual or constructive notice to the city. Cases cited under subdivision (c) of Point (1), supra.

BOYER, C.

Viola Atchley as plaintiff obtained judgment on a jury's verdict against Kansas City in the sum of $2000 for personal injury alleged to be due to the negligence of defendant. The city duly appealed. Plaintiff died before the appeal was presented. Upon suggestion of death and by agreement of parties the case was revived by an order of this court in the name of the duly appointed administrator, as shown in the present caption of the case.

The points presented on appeal pertain solely to the alleged error of the court in refusing to give defendant's instruction in the nature of a demurrer to the evidence, and in giving plaintiff's recovery instruction. One of the grounds urged in support of the demurrer is that plaintiff failed to give, and that the city never received, written notice of the time of plaintiff's alleged injury and her claim therefor as required by section 7636, Revised Statutes 1939, and that there was a fatal variance in the evidence from the allegations of the petition as to the time of the injury. There was no written notice served upon the mayor prior to the filing of suit, but the petition was filed and the defendant filed answer thereto prior to the expiration of ninety days after the alleged injury. The issue as to the sufficiency of notice was raised before trial in defendant's amended answer. The only question in reference to the pleadings and to the issue thus raised is whether the petition was sufficient to inform defendant of the time of the injury in conformity with the requirement of the applicable statute.

The petition alleges "that on or about the twenty-third day of September, 1933," while she was walking upon and over a public sidewalk constructed of broken rock or rubble she was caused to slip and fall, and as a direct result thereof she was seriously and permanently injured. During the trial plaintiff testified, both upon direct and cross-examination, that her injury occurred on the 22d day of September, 1933. There is no claim made by respondent that this was not the true date of the injury. But conceding that to be a fact, it is elaborately and strenuously urged that the notice...